Gibbens’ strategy puts focus on prosecutors’ online comments
In 2006, Billy Gibbens walked out of his office on Poydras Street, leaving a promising career track at the U.S. Attorney’s Office for an aggressive private defense firm with a history of locking horns with the government.
Six years later, Gibbens would ignite a wildfire that has engulfed his former colleagues, threatens to burn reporters and their sources, and has sent embers spiraling to light on and perhaps destroy some of the most important victories his old office had hoped to claim.
In that time, Gibbens has made a cottage industry out of bare-knuckle attacks on federal attorneys and investigators. That approach, which began by amplifying whispers that prosecutors were venting about their cases in online comments, has grown to include wide-ranging fishing expeditions that aim to catch evidence of impropriety.
It’s proven to be an effective tactic, and it has been widely copied by attorneys representing some of New Orleans’ most notorious defendants. And as the commenting scandal that brought down former U.S. Attorney Jim Letten and his top lieutenants has seemingly begun to run dry, Gibbens has turned his attention to the news media, issuing wide-ranging subpoenas to reporters and setting the stage for a battle between the rights of a free press and the right of defendants to due process.
“I think we have to be very careful that in zealously defending the rights of defendants to a fair trial we don’t turn the news media into a ready source of information,” said Gene Policinski, chief operating officer of the Newseum Institute, a nonpartisan organization dedicated to First Amendment issues.
The latest turn in the sprawling cases that have been impacted by Gibbens’ strategy involves two New Orleans Advocate reporters, John Simerman and Gordon Russell, who have been ordered to testify about a meeting the FBI has acknowledged having with them before Simerman published a story on the Central City gang allegedly headed by Telly Hankton.
Gibbens represents Hankton’s cousin, who allegedly was a member of the criminal organization, and he has pushed for the right to question the reporters about unrelated articles that relied in part on unnamed sources, though U.S. District Judge Martin Feldman said Wednesday he would not allow such a broad inquiry.
Forcing reporters to give testimony is bad for journalism, said Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press.
“Journalists need to be independent to be credible, and anytime you’re dragged into court to talk about who you talked with to get your story, it compromises your independence,” Leslie said. “It interferes with journalism at every level.”
From prosecutor to defense
Gibbens declined to discuss his career or the cases he has brought against prosecutors with The New Orleans Advocate, citing the ongoing Hankton case.
Gibbens is universally described by others in the legal community as a smart and clean-cut lawyer, regardless of which side of the courtroom he was on. A graduate of Jesuit High School, he went on to get his undergraduate and law degrees from the University of Virgina before returning to New Orleans to clerk for Judge Edith Brown Clement on the U.S. 5th Circuit Court of Appeals.
From there, he went straight to the U.S. Attorney’s Office in 2002, rather than first proving himself as a prosecutor in a local district attorney’s office, the typical career path for a young federal prosecutor.
He received high honors while a prosecutor, including a Director’s Award from the Department of Justice and accolades from the Metropolitan Crime Commission. Among the high-profile cases he worked on was Operation Wrinkled Robe, the feds’ probe into judicial corruption at the Jefferson Parish courthouse.
Gibbens switched sides four years later, joining the pugnacious defense firm Schonekas, Evans, McGoey and McEachin. Though prosecutors regularly leave their government jobs for the allure of more lucrative private work and, due to their experience, often end up facing off in court against former colleagues, Schonekas is viewed as having a more hostile relationship with prosecutors than most firms.
As a defense attorney, Gibbens served on the team representing Fred Heebe, co-owner of landfill company River Birch Inc., as federal officials began to probe allegations that Heebe had bribed officials for preferential treatment.
By then, the fact that at least one federal prosecutor was using Nola.com comments to weigh in on cases had been an open secret in New Orleans’ clubby legal community for years. It was a secret that Gibbens and co-counsel Kyle Schonekas would use to explosive effect in a defamation suit when they — with the help of a former FBI profiler — identified Assistant U.S. Attorney Sal Perricone as the author of 595 comments posted on Nola.com under the handle “Henry L. Mencken1951.”
Perricone was later revealed to have used at least three other aliases on the site and possibly more. A second lawsuit unmasked First Assistant U.S. Attorney Jan Mann as a pseudonymous commenter at Nola.com.
Those revelations sent shock waves through the U.S. Attorney’s Office, leading to Perricone’s and Letten’s resignations and the retirement of Mann and her husband, who also worked in the office.
Just months after those departures, the Justice Department, which had taken over the long-running investigation into River Birch as the scandals in the New Orleans office widened, abruptly announced it was dropping the case and that no charges would be filed against Heebe or his company. Department officials never explained why they made that decision or what role the commenting scandals played in it.
While few prognosticators foresaw such extensive wreckage, Gibbens seemed to sense the attacks were an effective strategy from the get-go.
Just after Perricone’s resignation in 2012, Gibbens filed a motion on behalf of a defendant in the Danziger Bridge shootings case seeking a delay in sentencing due to comments made by Perricone. He later expanded that argument, adding complaints about leaks to build a larger argument that the government had been waging a “secret public relations campaign” against the defendants.
U.S. District Judge Kurt Engelhardt was receptive to those arguments, and he pushed the government to both investigate leaks and further probe the extent of online commenting within federal law enforcement. Under the judge’s insistent oversight, an independent prosecutor identified Karla Dobinski, the head of the Justice Department team charged with protecting the civil rights of a police officer in the Danziger Bridge case, as yet another pseudonymous commenter. That new disclosure was at the center of Engelhardt’s decision last fall to toss out the convictions of the Danziger defendants and order a new trial.
In that same order, the judge noted with displeasure that the Justice Department had opted against subpoenaing reporters to question them about sources.
In the meantime, Gibbens’ tactics have been quickly imitated by much of the defense bar. A half-dozen other defendants have sought to have their convictions or indictments thrown out on the basis that pseudonymous comments deprived them of a fair trial or due process. Some have been unsuccessful, including former Mayor Ray Nagin, while others are still pending.
Aim at the media
The Hankton case presents another potential angle on the same approach and takes more direct aim at the media. The subpoenas issued to Simerman and Russell would have allowed broad-based questioning about 19 articles that had nothing to do with the Hankton case — possibly in hopes that questioning would reveal information that could be used on behalf of other defendants.
Federal prosecutors decried that tactic in seeking to quash the subpoenas.
“The defendants do not propose to call the agents and reporters or others to produce evidence to the contrary,” according to their motion. “Rather, they seek to ‘explore’ and ‘inquire’ about not only this meeting, but a range of unrelated cases and investigations with no connection to this case.”
Attorneys for The Times-Picayune — which is paying to represent the reporters because they worked for that company when the article was published — made a similar case.
Feldman ultimately ruled that the subpoenas could go forward, though he ruled the questions will have to focus on the meeting between the FBI agents and the reporters.
Federal authorities have said that meeting was designed to ensure the article — which they knew was in the works — would not hamper their ability to arrest suspects after the indictment was handed down or somehow endanger law enforcement.
Some media experts say even the reduced inquiry approved by Feldman has the potential to scare off those who would otherwise work with reporters and thus to inhibit freedom of the press.
“If you hold reporters to the standard of always being dragged into court to talk about their sources, it becomes an attempt to compromise their independence,” Leslie said.
In the Hankton case, three FBI agents have already signed affidavits that lay out details about their meeting with reporters. The Newseum’s Policinski argued that it should be those officials — who work for the government — who should have to testify about allegations they acted improperly, rather than impairing the operation of the media, even it means the difficult process of subpoenaing “officials, maybe by the dozen, and asking them under oath about conduct that someone wishes to challenge.”
“I think journalists ought not to have defense attorneys run to their notebook to prove a particular case,” Policinski said.
Leslie also suggested that just because news about a potential defendant appeared in a newspaper or on a website does not mean a jury, grand or otherwise, has been biased. The Times-Picayune’s attorneys have made a similar case, arguing that the grand jury process and the screening of jurors before trials provide another set of checks and balances to ensure a defendant gets due process.
“If you’re saying that just because it appeared in the media they can’t get a fair trial, I think that’s wrong and a lot of judges wouldn’t go along with that,” Leslie said.
“People often forget what they hear in the media or didn’t see it in the first place,” he said. “When questioned about it, people often say that, ‘Yes, I heard about it, but I can come in and judge it fairly.’ ”
In the end, calling reporters to testify does damage to the independence that has traditionally made the Fourth Estate the public’s watchdogs, Policinski said.
“If the press isn’t able to function and be independent of the judicial process in historical fashion, who else will be?” Policinski asked. “If you want to guarantee a fair trial for the defendant, if you want to make sure prosecutors behave properly and you want to make sure judges act in a fair manner, you need an independent press.”